Republican Congressman David C. Treen (LA) spoke for most of his party when he urged Leon Jaworski not to prosecute Nixon. Treen believed that it would be “extremely divisive and counter-productive.” More important, Treen urged Jaworski to consider mitigating factors: Nixon had rendered the nation a great service by resigning and not extending the impeachment battle; he had not destroyed the tapes; and his resignation alone constituted “punishment of indescribable magnitude.” Many Americans thought that the price already had been too high; many others, Treen contended, believed any further penalty altogether unjustified.10
On August 27, Leonard Garment talked to several reporters who, he claimed, thought that the time had come for Ford to issue a pardon. Vengeance offered no rewards to the nation, they agreed, and Nixon himself was destroyed. Garment thought that Ford had to act before “institutional momentum” made it impossible for him to do so. Working with Raymond Price, Nixon’s chief speechwriter, he drafted a memorandum and a pardon announcement for Ford. Garment presented the documents to Buchen the next morning at the senior staff meeting, and provided a copy to Haig.
The quiet, informal pressures on Ford that had been building throughout the month now came to a focus in Garment’s memorandum. Garment warned that demands to punish Nixon would increase, not diminish. Jaworski confronted irresistible pressures to prosecute from his staff, the media, and Sam Dash of the Senate Select Committee. Soon, Garment believed, matters would pass from Ford’s control: the national mood of conciliation would dissipate, the President would find it increasingly difficult politically to intervene, “and the whole miserable tragedy will be played out to God knows what ugly and wounding conclusion.” On the other hand, Garment argued that after an initial negative reaction to a pardon, the nation would be relieved. He thought prompt action would relieve Ford of Nixon as a distracting issue in both the upcoming congressional elections and the President’s efforts to forge a new economic policy. He confidently argued that the nation thirsted for direction and crystallization of its feelings toward the ex-president; Ford, he insisted, had an opportunity to lead and to inspire.11
Conveniently—perhaps too conveniently—the first question raised at Ford’s press conference that day, August 28, was whether he agreed with Rockefeller on immunity for Nixon and whether he would use his pardon authority. Ford thought that Rockefeller’s statement “coincided” with the “general view” of the American people. A bit elliptically, he added that “in this situation I am the final authority,” and then pointedly declared that a pardon was a “proper option.” For most commentators, Ford left no doubt that he thought the former President had suffered enough. He clearly indicated that he would pardon Nixon—he later admitted that this was his implication—but he also added that he would not take precipitate action: “There have been no charges made, there has been no action by the courts, there has been no action by any jury. And until any legal process has been undertaken, I think it is unwise and untimely for me to make any commitment.” The President’s Press Secretary, for one, believed that Ford had made a solemn promise not to interfere until the process had run its course.
Ford, of course, knew that the pardon issue would inevitably be raised. He later described that press conference with some bitterness, because reporters had concentrated so on the fate of the ex-president that they failed to raise the substantive national policy issues that Ford faced. “I thought they had wasted my time,” he wrote. Further, he thought that similar questions would go on endlessly and his answers be subjected to various, and even irresponsible, interpretations. He admitted that he had some concern over Nixon’s personal health, and his own belief was that the country did not want to see him behind bars. But he insisted that the nation’s health most concerned him, and he quoted one of his military aides: “We’re all Watergate junkies. Some of us are mainlining, some are sniffing, some are lacing it with something else, but all of us are addicted. This will go on and on unless someone steps in and says that we, as a nation, must go cold turkey. Otherwise, we’ll die of an overdose.”
Immediately after the press conference, Ford told his aides to prepare the necessary pardon documents. Buchen, however, claimed that the President did not order him to proceed until August 30. He, of course, was not unfamiliar with the issue—having read Garment’s pardon memorandum as well as having discussed the matter with Haig. And Buchen undoubtedly had shared the material and conversations with the President.12
The Special Prosecutor’s staff made its own assessment of Ford’s August 28 press conference. Lacovara thought that Ford opposed any prosecution of Nixon, and that he had signalled Jaworski accordingly so he would not have to pardon Nixon. Lacovara urged Jaworski to ask the White House (offering to do so himself) if the President intended to pardon Nixon. He apparently hoped to force Ford to act to head off any pending indictment.13
On September 4, Jaworski told Buchen that Nixon could not be tried for at least nine months to two years. He added that the forthcoming trial of Mitchell, Haldeman, and Ehrlichman would generate unfavorable, prejudicial publicity, precluding any fair trial for Nixon. Jaworski also had no intention of including Nixon as a co-defendant, believing that the former President’s condemnation in the impeachment process might well prejudice the cases of the other defendants. On that same date, Nixon’s lawyers delivered a lengthy memorandum to Jaworski, demonstrating “conclusively” that the former President could not receive a fair trial and should not be indicted. The prosecutors themselves never came to a specific conclusion on the fair-trial issue.
Jaworski had a healthy respect for Nixon’s new lawyer, as well as a keen memory of the former President’s determination to delay and impede legal proceedings. He attached a memorandum of his own to one he had received from his deputy, Henry Ruth, stating that the staff was investigating ten possible criminal violations by Nixon aside from his role in obstructing justice in the Watergate affair. “None of these matters at the moment rises to the level of our ability to prove even a probable criminal violation,” Ruth wrote; yet, he thought the investigations proper as the prosecutors fully pursued their duties. Ruth told Jaworski that, if he intended to seek an indictment of the former President, it would be “fair and proper” to notify the White House “sufficiently in advance so that pardon action could be taken before indictment.” He believed that good arguments could be made for leniency, but if Ford were to pardon Nixon, “I think he ought to do it early rather than late.” Ford claimed that Ruth’s remark clinched his decision. The President had his own political calculus to follow; the prosecutors, for their part, found important considerations at stake involving the integrity and viability of the legal system.14
Ford had made his decision firm by September 4, perhaps sooner. But for the next few days, he carried out a bargaining charade with his predecessor. At the same time, in this crucial period between his decision and his announcement of the pardon, he failed to do the things that might have made his action more acceptable; instead, his attention focused on fruitless negotiations between his emissary and the Nixon entourage in San Clemente.
On September 4, Philip Buchen met with Nixon’s new lawyer, Herbert J. Miller, and Benton Becker, a young attorney who had worked for Ford in Congress. Buchen told Miller that Ford was considering a pardon and that he hoped Miller might be able to help extract a statement of contrition from Nixon. Ford admitted that the idea of such a statement had been broached, but he later added that he had not “demanded” it. In fact, the President was concerned about Nixon’s response. He shared Jaworski’s fear that Nixon might act as Spiro Agnew had when he offered a nolo contendere plea in October 1973 and then publicly insisted he had done no wrong.15
Ford dispatched Becker to San Clemente the next day. Becker’s mission was threefold: he was to negotiate a statement of Nixon’s response to a pardon, conclude an agreement regarding the possession and control of Nixon’s papers and tapes, and make some determination of the former President’s mental and physical
condition. As Becker left the White House, Haig told him Nixon would never surrender his papers and tapes. When Becker arrived in San Clemente, Ronald Ziegler, Nixon’s principal aide, greeted him rather belligerently, as Becker recalled, and said that President Nixon would not admit anything to “Jerry Ford,” and he would not give up his papers and tapes. “If you’re out here for any of that, you’re wasting your time,” Ziegler said. Ziegler’s knowledge of Benton’s mission was not the only indication that Haig may have had his own two-track process, and that he—and perhaps Ford—had spoken to Nixon or to the former President’s aides in San Clemente.
Becker believed that Ford had instructed him to get a statement of contrition in Nixon’s response to the pardon. But during his second day in San Clemente, Ziegler said the subject was a waste of time, since Ford was not insisting on such a statement. Ford later admitted as much, but only he or Haig could have relayed that information to the Nixon camp. When Becker returned to Washington, he told the President of his suspicions, but Ford responded rather calmly.
Becker’s negotiations had an element of the surreal about them. Ford had the upper hand yet seemed to end up at a disadvantage. The San Clemente proceedings resembled a poker game, a pastime that Richard Nixon liked and supposedly had mastered in his Navy years. Perhaps Nixon had an advantage, using Haig to signal Gerald Ford’s playing hand; perhaps he simply outbluffed his successor. Becker certainly did not get any statement of contrition, and the agreement on Nixon’s presidential materials was so one-sided as to provoke an unprecedented response by Congress.
Nixon and his staff knew that Ford had decided on a pardon, founded in the realization that only in that manner could he end the national obsession with Watergate. Becker had a draft pardon with him, as well as the draft of an agreement on the presidential records. If Ford had been serious about the statement of contrition, Becker might well have carried an advance statement of that as well. He did not. Becker acknowledged that Ford probably was not altogether interested in such a statement, apparently believing that the “Nixon-haters” would object to a pardon under any conditions. The pardon and the materials agreement were linked to some extent, according to Becker, yet the final result in both areas proved beneficial only to Richard Nixon.
Becker spent much of his time in San Clemente working with Miller and Ziegler (who regularly consulted with Nixon) on the language of a statement that the former President would make upon receipt of the pardon. That statement, Becker knew, was not to be one of contrition; it was, he admitted, merely “antiseptic,” and he did “not think it [said] very much.” The statement went through at least four drafts before all parties settled on its final language.
When he accepted the pardon, Nixon expressed the “hope” that Ford’s “compassionate act” would lift “the burden of Watergate” from the nation. Looking back on “the complex and confusing” events of the past two years and more, he acknowledged that he had been “wrong in not acting more decisively and more forthrightly”—but he admitted to no obstruction of justice regarding the Watergate affair itself, and he admitted to none of the abuses of power cited by the House Judiciary Committee. Nixon did leave one small opening for recognizing an obstruction of justice, when he stated that he might have been more forthright after Watergate had “reached the stage of judicial proceedings.” Others, he said, believed that his action had been illegal and self-serving. But, quietly defiant, Nixon simply stated that he now understood how his “own mistakes and misjudgments … seemed to support” that belief. Those “mistakes and misjudgments,” he concluded, amounted to the “wrong way” to deal with Watergate—and that was the “burden I shall bear for every day of the life that is left to me.” Watergate thus was merely a blunder, a mistake of the head, not the heart. For Nixon, his actions only “appeared” to cast him as a wrongdoer.
After all the hard bargaining, bargaining in which Nixon did not deal personally with Ford’s emissary, Benton Becker had a brief audience with Nixon. He claimed that he told Nixon the White House would stand by prevailing legal doctrine that acceptance of a pardon acknowledged guilt. Nixon seemed uninterested. Becker remembered the conversation as unfocused and depressing. He found Nixon to be “an absolute candidate for suicide; the most depressed human being I have ever met, and I didn’t think it was an act.” Becker duly conveyed that impression to President Ford. Whatever Nixon’s mood when he met with Becker, less than three weeks later he signed a contract for a two-million-dollar advance for his forthcoming memoirs.16
Nixon and his advisers apparently decided that they did not need to give Ford any statement of contrition. They believed—and probably knew—that Ford had determined to grant the pardon in any event, in order to get on with the nation’s business. Politically, they saw themselves in command of the situation. Melvin Laird later suggested that Ford believed he would get a statement of contrition from Nixon out of gratitude, if for no other reason. Philip Buchen told reporters that Ford had made no effort to secure any acknowledgment of guilt from Nixon; instead, Buchen concentrated on persuading the media that Nixon’s acceptance of the pardon itself offered that acknowledgment.
Ford had the best playing hand, had he chosen to use it. Although Nixon had an advantage in knowing Ford’s intentions on the pardon, if Ford had really wanted that statement of contrition—if he had realized how important it would have been to soothe the inevitable public reaction—he simply could have issued the pardon, pointing out that its acceptance acknowledged guilt and that he knew Nixon deeply regretted his wrongdoing. How could Nixon have denied that statement?17
When Becker went to San Clemente, the disposition of presidential materials was at issue within the White House, amid reports that Nixon had sought to burn documents or remove his personal papers to San Clemente. According to Becker, Buzhardt had attempted, apparently with Haig’s full knowledge, to have the records flown to the former President. Becker understood that he was to link an agreement on that subject with the pardon. But, again, he suspected that Haig might have leaked that connection to Nixon’s staff and persuaded them to yield somewhat on the records. The “give” was slight, at best.
Becker brought back an agreement on the Nixon records subsequently known as the Nixon-Sampson Agreement, named after the Administrator of the General Services Administration, and announced the same day as the pardon. The agreement required the former President to deposit his papers in the National Archives, yet gave him “all legal and equitable title” to those materials, as well as the right to control access and to withdraw any of them after three years. Nixon was also assured that his tape recordings would be destroyed upon his death or in 1984, whichever came first. Buchen later defended the agreement because he considered the recordings as “so offensive and contrary” to personal privacy. For his part, Becker claimed that Ford was not going to be a party to the “final cover-up” of Watergate by giving Nixon possession of his papers—a statement that somehow ignored the fact that giving him unequivocal control over their use was a complete victory for Nixon.
Within weeks, Congress abrogated the Nixon-Sampson Agreement when it passed the Presidential Recordings and Materials Preservation Act of 1974, giving the National Archives custody of the Nixon records and the authority to determine their use. Specifically, Congress recognized the need “to provide the public with the full truth, at the earliest reasonable date, of the abuses of governmental power popularly identified under the generic term ‘Watergate.’ ” For thirteen years thereafter, Richard Nixon fought to prevent implementation of that law, seeking, as always, to control the understanding of himself and his presidency. Finally, in 1987, the National Archives opened the first batch of papers of his Administration.18
The President felt the first shock of reaction to the pardon from within his inner circle, when Press Secretary Jerald F. terHorst resigned in anger on the day Ford announced the pardon. “The mere fact that Ford could throw away the new national mood of trust for the sake of Richard Nixon” left h
im wondering about Ford’s judgment. Ford’s pardon “without getting in return a signed ‘confession’ ” was most shocking of all. TerHorst could not understand Ford’s miscalculation. The President believed that he had offered an act of mercy; instead, terHorst thought, what he had done had all the earmarks of a secret deal and a denial of any principles of equal justice. Ford had healed nothing; to terHorst, he had reopened the “Watergate wound and rubbed salt into the public nerve ends.” TerHorst complained that Ford had not consulted with his advisers in pardoning Nixon. But in fact he had. Some in the White House agreed, and some disagreed, both among his own aides as well as among the Nixon holdovers. In any event, terHorst concluded that he could not do anything for the President; “my loyalty,” he told another reporter, “was pledged to the United States.”19
The news of the pardon produced a good deal of popular protest. The consummate grassroots politician had previously operated in the friendly confines of his Grand Rapids, Michigan, constituency, and he had faithfully reflected its wishes. Perhaps national soundings were out of Gerald Ford’s depth. Yet if he was determined to act as he did, and for the reasons he gave, he had no choice but to accept and then surmount the fickleness of public opinion. Logic compelled a general pardon for all those involved in Watergate if the principal culprit went free; but the political storm generated by the pardon of Nixon ended any such possibility.
The White House received nearly 270,000 written communications following the pardon, almost 200,000 of which opposed Ford’s act. Public officials, both high and low, expressed their feelings. A member of the Kansas House of Representatives congratulated Ford for doing “exactly the right thing.” An Alabama Democratic judge commended his “courageous and prompt action.” A California Assemblyman was “both astonished and appalled,” while an Arkansas state legislator warned Ford that he would always be perceived as a “caretaker, cleaning the dirty Nixon dishes he left behind.”
The Wars of Watergate Page 83
